Rejeesh T.K. & Others v. Divya & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** ## **MONDAY, THE 22ND DAY OF JANUARY 2018 / 2ND MAGHA, 1939** ## **OP(Crl.).No. 606 of 2017** ## **PETITIONER(S):** ## **1 REJEESH T.K** **AGED 30 YEARS, S/O.KRISHNANKUTTY, THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** ## **2 K.V.KRISHNANKUTTY** **AGED 66 YEARS, S/L.LATE THENAM, THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** ## **3 SUDHA** **AGED 57 YEARS, W/O.KRISHNANKUTTY, THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** **BY ADVS.SRI.M.M.MONAYE SMT.BINCY JOSE** ## **RESPONDENT(S):** ## **1. DIVYA** **AGED 33 YEARS, W/O.RATHEESH, DEEPTHI HOUSE, KARUVELI, KOTTARAKKARA, NOW RESIDING AT THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** ## **2. MINOR ADITHYAN** **AGED 4 YEARS, S/O.RATHEESH & DIVYA, REPRESENTED BY MOTHER AND NEXT FRIEND DIVYA, NOW RESIDING AT THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** ## **3. RATHEESH T.K.** **AGED 36 YEARS, S/O.KRISHNANKUTTY, THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565, NOW RESIDING AT HOUSE NO.VIII-144 A, KIZHAKKAMBALAM PANCHAYATH.** **OP(Crl.).No. 606 of 2017** ## **4. SARASWATHI** **AGED 64 YEARS, W/O.M.JAYAPRAKASH, DEEPTHI HOUSE, KARUVELI, KOTTARAKKARA, NOW RESIDING AT THOTTUNGAL VEEDU, PUNNORCODE KARA, KUNNATHUNADU VILLAGE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT, PIN-683565.** ## **5. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R3 BY ADV. SRI.BENNY VARGHESE R1,R2,R4 BY ADV. SRI.SHABU SREEDHARAN R1,R2,R4 BY ADV. SRI.K.V.VASAVAN R1,R2,R4 BY ADV. SRI.P.R.VIBHU R1,R2,R4 BY ADV. SMT.NIDHI RAVINDRAN R1,R2,R4 BY ADV. SRI.M.YOHANNAN R1,R2,R4 BY ADV. SRI.D.THILAKAN R1,R2,R4 BY ADV. SRI.K.V.PREMSANKAR R BY GOVERNMENT PLEADER:SMT M K PUSHPALATHA** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(Crl.).No. 606 of 2017 (Q)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE DEED NO.376/2017.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE TRANSFER PETITION NO.262/2014.** **EXHIBIT P3 TRUE COPY OF THE AWARD IN THE LOK ADALAT DATED 12-11-2016.** **EXHIBIT P4 TRUE COPY OF TE SAID DEED NO.3765/2017 DATED 18-9-2017 OF THE PUTHENCRUZ SUB REGISTRAR OFFICE.** **EXHIBIT P5 TRUE COPY OF THE RENT AGREEMENT DATED 1-10-2017 FOR THE HOUSE NO.VIII/144A IN THE KUNNATHUNAD PANCHAYATH.** **EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER OF GRAMA NYAYALAYA VADAVUKODE DATED 5-10-2017 OBTAINED ON 19-10-2017.** **EXHIBIT P7 TRUE COPY OF THE PETITION FILED BY THE 1ST AND 2ND RESPONDENT DATED 5-10-2017.** **EXHIBIT P8 TRUE PHOTOCOPY OF THE TAX RECEIPT DATED 19-10-2017 IN RESPECT OF EXT.P1 DEED.** **EXHIBIT P9 TRUE COPY OF THE RENT AGREEMENT DATED 14-10-2017 EXECUTED BY THE 2ND PETITIONER FOR THE HOUSE RENTED BY THE PETITIONER.** ## **RESPONDENTS EXHIBITS:NIL** **True Copy / P A to Judge** ## **SUNIL THOMAS, J.** ## ================= ## **O.P(Crl).No.606 of 2017** ================= Dated this the 22[nd] day of January, 2018 ## **JUDGMENT** Petitioners in the original petition are the respondents 2, 3 and 4 in M.C.No.19 of 2017, who are aggrieved by the order in C.M.P.No.220 of 2017, by which, the court below granted an interim protection order and restraint order ex parte, in favour of the respondents 1 and 2 herein. 2. Third respondent herein had married the first respondent in 2011. The second respondent minor child was born in the matrimonial relationship. While so, matrimonial relationship got strained leading to few proceedings. It is stated that 4 proceedings, which were pending in various courts, were settled in Lok Adalath by Ext.P3 settlement. The husband and wife decided to resume the matrimonial relationship. Husband assured to maintain the wife and to protect her. An attachment granted in favour of the wife by order in O.P.No.1303 of 2014 was vacated. Thereafter, the wife moved the Magistrate Court, Kolenchery seeking relief under section 23 of the Protection of Women from Domestic Violence Act for interim protection and restraint order. Ext.P6 order that was passed by the court below is under challenge at the instance of the brother of the husband and the parents of the husband. O.P(Crl).606/17 2 3. The premise on which the petitioners have approached this Court is that, by virtue of Ext.P1 settlement deed executed by the second petitioner, he settled the property in favour of the first petitioner who is the brother of the third respondent. They contended that since the property has been legally settled in favour of the first petitioner herein, first respondent and second respondent are not entitled for a residence order and it cannot be deemed to be a shared house hold as defined under the Domestic Violence Act. To buttress this contention, learned counsel for the petitioners relied on the decision in **A.R.Batra and Another v. Taruna Batra ((2007)3 SCC 169)** and Division Bench decision of this Court in **Hashir v. Shima (2015(2) KLT 919). In Batra's** case, it was held that a house, which exclusively belonged to the mother in law of the woman wherein she only lived with her husband for some time in the past, after their marriage, cannot be considered as a shared household. This was followed in Hashir's case cited above. It seems that, in both the decisions, there were materials before the Court to show that the property exclusively belonged to the respective owners. 4. In the case at hand, the contention of the first and O.P(Crl).606/17 3 second respondent is that, the disputed house is the shared household and it is the tarvad house of the husband and the family members. According to the wife, after the marriage in 2011, she was taken to that home and she lived in that house. The husband was employed at different places and it seems that, he had taken on rent houses at his respective place of residence. The contention of the husband was that, the wife refused to live with the husband in those houses taken on rent, except at a place at Kidangoor and Kottarakara for some point of time. A perusal of Ext.P3 shows that the tarvad property was under attachment. Without challenging that order of attachment, parties agreed to give a quietus to the dispute. Accordingly, the husband assured to take the wife and son to the tarvad house and to stay there. It is not in dispute that after execution of Ext.P3, both parties resided at the tarvad house. After the attachment was vacated in 2014, it seems that Ext.P1 was executed in 2017, by which, the father settled the property in favour of the first petitioner herein. According to the learned counsel for the first and second respondents herein, the parties now before this Court were also parties to the various proceedings pending before the Family Court, which ended in Ext.P3 settlement. Prima facie, it appears then that husband and wife resided in the tarvad house. O.P(Crl).606/17 4 Having considered this, subsequent assignment of Ext.P1 is of less significance at this stage. The right accrued in favour of an estranged wife, if any, by virtue of the provisions of the DV Act cannot be set at naught by assignment of the property to IIIrd party. Having considered this, at this stage, I feel that, it is premature to interfere with the impugned order. 5. It was vehemently contended by the learned counsel for the first and second respondents that the petitioners herein have an effective alternative remedy under section 29 of the DV Act by preferring an appeal. On that premise also, this original petition appears to be not sustainable. 6. It was contended by the learned counsel for the petitioner that the first petitioner had offered an alternate residence to the wife, which is evidenced by Ext.P9 rent agreement. It was also submitted at the time of hearing that the third respondent herein, husband has also offered to take the wife to his place of residence at his place of employment. These are options which are suggested only at this stage. However, this will not preclude the court below from considering any genuine request for providing alternate accommodation, if all other conditions are satisfied. Having considered these facts, I feel that there is no scope for any O.P(Crl).606/17 5 interference in Ext.P6 order at this stage. Original petition fails and is dismissed reserving the rights of the petitioners to raise all their objections before the court below and to pursue it in accordance with law. Sd/- **SUNIL THOMAS Judge** Sbna/18/1/18 True Copy / P A to Judge